Industrial Relations Commission of New South Wales CITATION : Moran Health Care (Australia) Pty Limited t/as Murwillumbah Nursing Home and New South Wales Nurses' Association (on Behalf of Debra Bennett) [2004] NSWIRComm 334 APPELLANT: Moran Health Care (Australia) Pty Limited t/as Murwillumbah Nursing Home PARTIES : RESPONDENT: New South Wales Nurses' Association (on behalf of Debra Bennett) FILE NUMBER: IRC 2663 of 2004 CORAM: Walton J Vice-President; Kavanagh J; Ritchie C CATCHWORDS : Appeal - leave to appeal - decision at first instance to award compensation for unfair dismissal - not sufficiently important to warrant the grant of leave - insufficient public interest - grounds relied on by the appellant insufficient to warrant the grant of leave - leave to appeal refused. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 IGA Distribution Pty Limited v Moses [No 2] (2002) 114 IR 307 HEARING DATES: 10/26/2004 EXTEMPORE JUDGMENT DATE : 10/26/2004 APPELLANT: Mr A Britt of counsel Mr C Cross, solicitor Abbott Pardy Jenkins LEGAL REPRESENTATIVES: RESPONDENT: Mr N Dawson of counsel Mr J O'Brien New South Wales Nurses' Association JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President KAVANAGH J RITCHIE C 26 October 2004 Matter No IRC 2663 of 2004 MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED T/AS MURWILLUMBAH NURSING HOME and NEW SOUTH WALES NURSES' ASSOCIATION (ON BEHALF OF DEBRA BENNETT) Application for leave to appeal and appeal against a decision of Commissioner Murphy given on 15 April 2004 in Matter No. IRC 1454 of 2003. DECISION OF THE COMMISSION EX TEMPORE [2004] NSWIRComm 334 1 This matter concerns an application by the appellant employer pursuant to s188 of the Industrial Relations Act 1996 for leave to appeal and if granted, an appeal against a decision and orders handed down by Commissioner Murphy on 15 April 2004. 2 Debra Bennett (the respondent) was a qualified nurse who commenced duties with the applicant as a casual in March 2000 and one month later in April was employed permanently pursuant to an employment contract dated 21 June 2000. 3 On 2 May 2000, the respondent injured herself as a result of an accident whilst pushing a medication trolley which fell on her causing injury. She was absent from work from 5 May 2000 to 1 June 2000. She then returned to work for four hours a day under a rehabilitation plan. On 11 July she returned to full duties. On 20 September 2001 she suffered further injury. 4 There was then a history of returning to work on restricted duties, some incidental but not necessarily serious aggravations to the injury and a number of returns to work on restricted duties. It became clear the respondent would not be able to return to her pre-injury duties. The respondent's employment was terminated on 21 February 2003. 5 The grounds of appeal were that the Commissioner erred in: (i) allowing the respondent [to the appeal] to pursue a case alleging "unfairness" which was not consistent with the pleadings in the s84 application; (ii) refusing to allow the appellant to file further evidence where the nature of the respondent's case, as set out in the application under s84 in relation to the alleged unfairness, was not the basis upon which the respondent pursued the proceedings; (iii) refusing to provide the appellant with natural justice when the appellant was denied the opportunity to file further evidence; (iv) finding that the appellant has a duty to ensure that no realistic opportunity exists for the respondent's services prior to the dismissal of the respondent where the respondent is unable to perform the entire range of the duties in her position; (v) finding that the appellant does not have a reason for the respondent's dismissal where the respondent is unable to perform the full range of her duties; (vi) considering the appellant's treatment of the respondent for the purposes of determining whether the dismissal was harsh, unjust and unreasonable other than in the context of the respondent's dismissal; (vii) not properly considering the advice from the respondent's own doctor and the rehabilitation providers as to the likely prognosis of the respondent's condition; (viii) not properly considering those matters identified in s88 and; (ix) failing to deduct any payments received by the respondent since her dismissal when assessing the compensation payable to the respondent. 6 At trial the appellant did not press grounds (i) and (viii). 7 The Commissioner summarised his overall findings to include (at 41-43): As to the Documentation RN position · That the applicant was effectively manoeuvred out of the Documentation role, without any opportunity to improve her alleged defective performance after eight straight months, (in addition to a shorter earlier time in the job), on the pretext of a casual nurse, Ms Harris learning the job. No warning of shortcomings were given; no additional training offered; she received no response to her overtures to do a computer course and the job was handed to another without advertising, as per the respondent's own guidelines. · The written request of 10th June by the applicant to be considered for the job when she learnt only by the rosters that she was apparently being replaced, and when she was of the belief, albeit it from previous hearsay comments of another nurse that she had the job, was treated dismissively by Ms Stansby. · The request to be considered for the Documentation position should not have been brushed aside with the inadequate and querulous response by Ms Stansby. The latter's evidence that she would have been considered for the position if she had asked, was disingenuous in circumstances where her written request should have been enough to be formally considered as required by the respondent's own guidelines for advertising et cetera. Moreover her special circumstances of being injured at work highlighted the duty for her to be treated openly. · Her special circumstances called for the applicant to be dealt with more frankly, which included advising her that her ultimate desire to return to pre-injury award duties had to be considered in terms of just how much more time the applicant might be given if there was not a complete recovery. That disclosure might for instance have induced the applicant to be more active in pursuing her request to be considered for the Documentation RN position, which she could at least physically perform, despite her perception that Ms Harris was to be appointed or had been appointed. · The evidence of the applicant that she had not complained about doing the documentation role is to be preferred for reasons going to my adverse finding as to the reliability of Ms Stansby's evidence canvassed earlier. · The alleged acknowledgement by the applicant of preferring to continue with the return to ward duties program should not have been relied upon by the respondent as her resiling from her application, but as reassurance of her desire not to be a liability. Such an opportunistic response by Ms Stansby overlooked the overly compliant temperament of the applicant recognised by the Commission. Also, because of the other obligations towards the applicant to have warned her about any deficiencies, to have trained her, such as encouraging the computer course she raised with Ms Stansby, and to have properly advertised the position. · No weight is to be given to the defence in not warning her of the alleged inadequacies in the documentation role that the respondent "did not wish to upset her" and, if anything, this evidence was indicative of the paternalistic and even condescending attitude which the Commission has found marked the applicant's treatment over the documentation opportunity and the overall lack of frankness displayed at the time. It is ironic that there was an alleged concern at that point not to upset her, even when shortly thereafter a time limit for 4/6 months had been set with the rehabilitation provider for her recovery. · The reliance by the respondent upon its evidence of the lack of performance in the role also could not be given any weight for the reasons earlier canvassed, mainly related to the failure of statistics to back up the claim and not assisted by findings as to the lack of reliability of the respondent's credit. Alleged Inability to Perform the Contract · Having found the respondent deserved some criticism for its treatment of the applicant over the documentation position, its duty to provide further opportunity for rehabilitation was all the more important. · The Commission's findings as to the reliance upon the inability to perform all duties of ward RN have been sufficiently traversed elsewhere and largely relate to the inability to accept that the duties finally found wanting were anything but quite minimal and could have easily been carried, at least for a further reasonable period of rehabilitation. · The rehabilitation programs shown as commencing in August could surely only be judged from 7th October 2002, when she commenced her ward RN duties with some restrictions. · The fact that she still suffered some disability at the time of hearing might only reflect that she was prematurely denied the opportunity, through revised return to work programs to cope with a possible further expansion of her duties. · The reliance upon rehabilitation and medical WorkCover certificate reports has been found to be unsound in a significant way and need not be repeated here. · The applicant in fact showed a tangible and discernible improvement in the last few months once placed on a formal structured rehabilitation program under the CRS. In effect that opportunity was cut short. · The precedent's flagged with the Commission, especially surrounding the Federal Court's decision in Daghlain's case canvassed before the Commission, also highlighted how the applicant was not accorded sufficient opportunity here. 8 The Commissioner then went on to find (at 43): In the circumstances, the applicant has been found to have been the subject of a harsh, unjust and unreasonable dismissal. 9 In a further consideration as to remedy the Commissioner said (at 44-46): ... I have had some difficulty in this case deciding whether to grant the primary remedy of reinstatement sought by the Nurses Association. Anything short of reinstatement might be said to not fully address the potentially long-term harm to Ms Bennett. However, the Commission is conscious that it is not impossible for the applicant under Part 7 of the Act to seek reinstatement to a suitably nominated position under s93, (as was recognised by the respondent), within the prescribed time. Unsurprisingly, I have had to deal with the unusual notion of being able to deliver a remedy under Part 6 of the Act, which could debatably be more successfully resisted under the strictures set by s93, especially as interpreted by some leading decisions of the Full Bench of this Commission (although the Cansino authority relied upon by Mr Cross is highly distinguishable). I have in mind that the minimal duties not able to be performed by the applicant might still prevent a restoration, even though most of the cases involving reinstatement under s93 have concerned more profound disability. Under Part 7, the Commission may order further medical examination of applicants to assure itself of doubtful medical status of a subject employee. I am not informed of the up to date medical condition of Ms Bennett. If she should be reinstated with the less than perfect physical condition evident upon the time of her termination, it would be difficult to impose any particular regime or conditions governing her re-employment, without the prospect of creating an unrealistic situation at her workplace. None of these expressed concerns contradicts the earlier findings, but it must be recognised that Ms Bennett cannot simply be reinstated as a ward RN position without caveat. For instance on the afternoon shift, the evidence showed some other restricted duties are required, not needed in the morning shift performed by her in the months before termination. In short, the range of conditions which should perhaps apply upon her return are too indeterminate. Moreover, if the applicant was more or less simply placed back in her last role without further reference so to speak, there would be little incentive for the applicant to undertake an appropriate curative and rehabilitation process toward achieving full physical condition. I have accordingly narrowly decided to decline granting the remedy of reinstatement on the basis of impracticality. The consequent orders for compensation under s89(5), taking into account s89(6), should be understood to be paid free from deduction for any payments otherwise received by Ms Bennett since her termination. ORDERS The respondent, Moran Health Care (Australia) Pty Limited trading as Murwillumbah Nursing Home, is to pay to the applicant, Ms Debra Bennett, an amount of compensation equivalent to her remuneration in the six months prior to her dismissal. Using the information provided by the applicant in her application form that amount is to be $23,000 rounded off. The amount is to be paid to the applicant within twenty-one (21) days of this decision. 10 We have come to the view, after careful consideration of the submissions and material before us, that a case has not been established sufficiently to meet the prerequisite degree of importance such as to warrant the grant of leave. We do not accept, in the circumstances, the appeal raises issues of public importance which require the granting of leave. 11 In addition to this primary basis for refusing leave we consider that the grounds of appeal relied upon by the appellant are either unmeritorious or insufficient in themselves to warrant the grant of leave. By way of illustration we make the following observations: (1) Grounds (i) and (viii) were not pressed. (2) Grounds (ii) and (iii) were joined in argument and essentially concerned a challenge based on the procedural fairness ground that the Commissioner refused the opportunity for the appellant to call further evidence in the proceedings. However, we consider this ground to be defective as we do not consider that the appellant ever formulated an application or proposition the refusal of which would have warranted a finding based on this ground. Whilst we agree that the originating application was confined to a ground concerning s99 of the Act, it was clear by the calling of the applicant's evidence that a general case under s84 was being mounted, and further, the respondent's own evidence went beyond the s99 issue. (3) As to grounds (iv) and (v), we consider the Commissioner's reasoning was entirely consistent with the Full Bench decision in IGA Distribution Pty Limited v Moses [No 2] (2002) 114 IR 307 (which relevantly overruled Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 at 345) and was available on the evidence. (4) As to ground (vi), we consider that it was entirely open to the Commissioner to have regard to the history of the Documentation RN in reaching his decision and we found his reasoning in this respect acceptable. (5) As to ground (vii), we consider that the Commissioner erred in his approach to judicial notice. However we do not consider that the error infected in any material way his determination. (6) As to ground (ix), we consider that this ground has some substance as an abstract proposition. Further, we have some sympathy with the appellant's case in this respect given how late in the proceedings the compensation issue was raised. However, we find there was still ample opportunity for the appellant to raise the issue of deduction of payments received particularly after the Commissioner raised the issue of compensation and invited the appellant's submissions. The failure to do so warrants the rejection of leave on this point. 12 We order that leave to appeal is refused. The stay earlier granted on 17 May 2004 is lifted. 13 [Discussion with counsel regarding time for payment] 14 VICE-PRESIDENT: We grant the seven days for the making of any payments in accordance with the orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.